Review: From the Annual Report of the United
Nations High Commissioner for Human Rights and Reports of the Office of the
High Commissioner and the Secretary-General: Study of the United Nations High
Commissioner for Human Rights compiling existing legislations and jurisprudence
concerning defamation of and contempt for religions.

1. In resolution 7/19 on
Defamation of Religion, the Human Rights Council urged States to “take actions
to prohibit the dissemination, including through political institutions and
organizations, of racist and xenophobic ideas and material aimed at any
religion or its followers that constitute incitement to racial and religious
hatred, hostility or violence.” The vote on this resolution in the seventh
session of the U.N. Human Rights Council on 24 March 2008 was highly controversial with 21
in favor, 10 against and 14 abstaining.

“82. Further clarity is
needed with regard to the legal contours of the demarcation line between
freedom of expression and incitement to religious hatred. In order to protect
individuals and groups, a better understanding of the permissible limitations
to freedom of expression in accordance with international human rights law
needs to be developed. OHCHR will therefore organize an expert consultation
entitled “Links between Article 19 and 20 of the ICCPR: Freedom of expression
and advocacy of religious hatred that constitutes incitement to discrimination,
hostility or violence”. The expert consultation will be held from 2 to 3 October inGeneva and is open to the
participation of observers such as Member States, United Nations agencies,
regional organizations and NGOs.

The Study of the United Nations High Commissioner for
Human Rights compiling existing legislations and jurisprudence concerning
defamation of and contempt for religions, includes; International Norms and
Jurisprudence, Reports and Findings of Special Rapporteurs, Regional Norms and
Jurisprudence, National Laws and Jurisprudence and Conclusions. The full report
and Resolution 7/19 of the Human Rights Council on Defamation of Religion need
to be read before the Experts Consultation.

The Special Rapporteur report on Freedom of Opinion
and Expression is an important document for the debate on defamation of
religion and freedom or opinion and expression. The full report is available
below by the link to (A/HRC/7/14).

Here are excerpts from
the OHCHR Study.The Study and Human
Rights Council Resolution 7/19 can be opened by the links below. A third Word
Document is attached on the U.N. Special Rapporteur Report on Freedom of
Opinion and Expression, which refers to interpretations of the link between
Article 19 and 20 as one of the issues of the tension.

Excerpts: Excerpts are presented under the Eight Articles of
the 1981 U.N. Declaration on the Elimination of all Forms of Intolerance and of
Discrimination Based on Religion or Belief. Excerpts are presented prior to an Issue Statement for each Review.

International Covenant on Civil
and Political Rights (ICCPR)

Article 18:

1. 1Everyone shall have the
right to freedom of thought, conscience and religion. This right shall include freedom
to have a religion or whatever belief of his choice, and freedom, either
individually or in community with others and in public or private, to manifest
his religion or belief in worship, observance, practices and teaching.

1. 2. No one shall be subject to
coercion which would impair his freedom to have a religion or belief of his
choice.

1. 3Freedom to manifest one’s
religion or belief may be subject only to such limitations as are prescribed by
law and are necessary to protect public safety, order, health, morals or the
fundamental rights and freedoms of others.

Article 19:

1. Everyone shall have the right to hold opinions
without interference.

2.Everyone shall have the right to
freedom of expression; this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media
of his choice.

3. The exercise
of the rights provided for in the foregoing paragraph carries with it special
duties and responsibilities, but these shall be such only as are provided by
law and are necessary, (1) for respect of the rights or reputations of others,
(2) for the protection of national security or of public order (“ordre
public”), or of public health or morals.

Article 20:

1. Any
propaganda for war shall be prohibited by law.

2. Any advocacy
of national, racial, or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.

STUDY OF THE UNITED NATIONS HIGH
COMMISSIONER FOR HUMAN RIGHTS COMPILING EXISTING LEGISLATIONS AND JURISPRUDENCE
CONCERNING DEFAMATION OF AND CONTEMPT FOR RELIGIONS

INTRODUCTION

1. In resolution 7/19 the Human
Rights Council urged States to “take actions to prohibit the dissemination,
including through political institutions and organizations, of racist and
xenophobic ideas and material aimed at any religion or its followers that
constitute incitement to racial and religious hatred, hostility or violence.”

2. In paragraph 16 of that resolution, the Human
Rights Council requested the High Commissioner for Human Rights “to report on
the implementation of the present resolution and to submit a study compiling
relevant existing legislations and jurisprudence concerning defamation of and
contempt for religions to the Council at its ninth session.” In accordance with
that request, the High Commissioner submits to the Council a report on the
implementation of that resolution (A/HRC/9/7), and the present study.

BACKGROUND

6. Resolution 7/19 follows a series of resolutions
on defamation of religions adopted by the General Assembly, the former
Commission on Human Rights and the Human Rights Council. The common concern in
these resolutions revolve around several related themes, primarily the
stereotyping and negative portrayal of religions, in particular Islam, the
association of Islam with violence and terrorism in the aftermath of the 2001
terrorist attacks in the United States of America, the dissemination of ideas
based on superiority, discriminatory laws, policies and practices that have
targeted minority religious groups, and physical attacks on individuals and
communities and their properties and places and symbols of worship.

7. While these resolutions make reference to
“defamation of religions”, it appears that they often use the term in the
generic sense to describe some of the above phenomena – notably hostile
statements, unfair association with violence, stigmatization, ridicule, insults
against religion, attacks, “Islamophobia” – rather than in the strict legal
sense. In this context the resolutions perceive defamation in conjunction with
the need to combat hatred, discrimination, intimidation, coercion, etc. Thus,
paragraphs 8 and 9 of resolution 7/19 urges States “to prohibit the
dissemination…of racist and xenophobic ideas and materials aimed at any
religion or its followers”, and calls on them to provide “adequate protection
against acts of hatred, discrimination, intimidation and coercion resulting
from the defamation of any religion”.

8. The notion of defamation as is known in many
national legal systems is designed to protect individual reputation and image.
In its general legal meaning, it refers to an inaccurate statement (oral,
written) that is published through various means of communication (printed,
audio-visual, electronic) and is intended to or actually causes harm to a
person’s reputation. Some national laws require the additional element of
negligence or malice in the making of the statement. In general, the sanction
for defamation is a civil penalty, although some countries also recognize
defamation as a criminal offence.

9. Some countries have blasphemy laws which
envisage sanctions for profane acts (physical, oral, printed, audio-visual,
electronic, etc.). Others have adopted specific defamation of religions laws
that extend the concept of defamation to protect religions and, in that sense,
regard defamation of religions as essential to the protection of freedom of
religion or belief.

10. In the framework of international human rights
law, the combination of “defamation” with “religion” remains unclear for a
variety of reasons. It is within this context that this study is framed around
the following questions:

(a) To what extent the concept of defamation of
religions can be derived from existing international human rights law
framework:

(b) The scope of existing international human
rights law related to religion – namely, the freedom of religion or belief,
discrimination on the basis of religion and incitement to religious hatred and
violence – and if it sufficiently addresses the phenomena with which the
resolutions are concerned:

(c) The implications of “defamation of religions”
to the international human rights framework, particularly the relationship to
freedom of expression and other fundamental human rights.

INTERNATIONAL NORMS AND
JURISPRUDENCE

a. Freedom of religion or belief

14. Freedom of religion or belief has received
considerable attention since the founding of the United Nations. The United
Nations Charter does not explicitly mention freedom of religion or belief;
however its human rights provisions provide the normative framework. Since
then, many resolutions and the core human rights treaties have been adopted,
which deal with freedom of religion or belief directly and indirectly.

b. Relations of freedom of religion or belief to
freedom of expression and other fundamental human rights and freedoms

20. Paragraph 12 of Human Rights Council
resolution 7/19 states that freedom of expression is not unlimited. Indeed,
ICCPR envisages limitations to freedom of expression, in particular article 19
(3) which provides that certain restrictions may be imposed on freedom of
expression in order to protect the rights or reputations of others, national
security or public order, public health or morals. However, in general comment
No. 10 (1983) on freedom of expression, the Human Rights Committee underlined
that restrictions may not put in jeopardy the right itself. The limitations
must be “provided by law”, they should be imposed for one of the purposes set
out in subparagraphs (a) and (b) of the article, and they must be justified as being
“necessary” for one of those purposes.

c. Incitement to religious hatred and violence

23: In 2006, the High Commissioner for Human
Rights submitted a report to the Human Rights Council on incitement to racial
and religious hatred and the promotion of tolerance which outlines in detail
the international legal framework with regard to incitement to religious hatred
and violence (A/HRC/2/6). The report concluded that existing international and
regional human rights instruments, primarily ICCPR, ICERD and the three
regional instruments, indicate a broad consensus on the law relating to
incitement and advocacy or racial and religious hatred and provide a good basis
for “legal and policy” responses to the problem of intolerance more generally,
and the incitements of hatred and violence in particular” (para.80).

d. Intersection of race and religion

30. The permissible limitations to freedom of
expression are one of the main issues in the discourse on defamation of
religions. In paragraph 13 of resolution 7/19, reference is made to general
recommendation No. 15 of the Committee on the Elimination of Racial
Discrimination which affirms that “the prohibition of the dissemination of all
ideas based upon racial superiority or hatred is compatible with the freedom of
opinion and expression” (para. 4). The resolution asserts that this is equally
applicable to the question of incitement to religious hatred.

ISSUE STATEMENT: The “Study of the United Nations High Commissioner for
Human Rights Compiling Existing Legislations and Jurisprudence Concerning
Defamation of and Contempt for Religions” will serve as the basis for an
Experts Consultation at the U.N. Human Rights Council on 2-3 October 2008.
Permissible limitations to freedom of expression are one of the main issues in
the discourse on defamation of religions in the reports of the U.N. Special
Rapporteur on Freedom of Opinion and Expression. An operative paragraph from
the U.N. Special Rapporteur on Freedom of Opinion and Expression is listed here
and his full report and discussion of legal options under Articles 18-20 of the
International Covenant on Civil and Political Rights is in the Word Document
attached.

Special Rapporteur Report (A/HRC/7/14) on
Freedom of Opinion and Expression: 65. The Special Rapporteur also emphasizes that
existing international instruments establish a clear limit on freedom of
expression. In particular, the International Covenant on Civil and
Political Rights that provides that “any propaganda for war” and “any
advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence shall be prohibited by
law.” The main problem thus lies in identifying at which point exactly
these thresholds are reached. The Special Rapporteur underscores that this
decision which is ultimately a subjective one, should meet a number of
requirements. In particular, it should not justify any type of prior
censorship, it should be clearly and narrowly defined, it should be the
least intrusive means in what concerns limitations to freedom of
expression and it should be applied by an independent judiciary. The
Special Rapporteur reiterates that these limitations are designed to
protect individuals rather than belief systems, guaranteeing that every
person will have all of his or her human rights protected.

The U.N. Special Rapporteur is of the opinion that
“defamation of religion” is not a legal term and that adequate legislation
already exists in the link between Article 19 and Article 20 to protect against
incitement to discrimination, a legal term under international law. The key
phrase her is a subjective one, “identifying when exactly these thresholds are reached.” The Study cites some U.N. Member
States Constitutions and laws that argue for penalties based on defamation of religion, while others, like the United States
reservation to Article 20 of the ICCPR will argue the opposite. This tension
and debate will be the subject of the Experts Consultation on 2-3 October 2008.

Article 20: The United States of America,
signatory to the International Covenant on Civil and Political Rights,
made the following reservation: (1.) That Article 20 does not authorize or
require legislation or other action by the United States that would
restrict the right of free speech and association protected by the
Constitution and laws of the United States.

Submit information under the Eight Articles and
sub-paragraphs of the 1981 U.N. Declaration on the Elimination of All Forms of
Intolerance and Discrimination Based on Religion or Belief by using The Tandem Project
Country & Community Database.

The Tandem Project: a non-governmental organization founded
in 1986 to build understanding, tolerance and respect for diversity, and to
prevent discrimination in matters relating to freedom of religion or belief.
The Tandem Project, a non-profit NGO, has sponsored multiple conferences,
curricula, reference materials and programs on Article 18 of the International
Covenant on Civil and Political Rights – Everyone shall have the right to
freedom of thought, conscience and religion - and 1981 United Nations
Declaration on the Elimination of All Forms of Intolerance and Discrimination
Based on Religion or Belief.

The Tandem Project
initiative is the result of a co-founder representing the World Federation of
United Nations Associations at the United Nations Geneva Seminar, Encouragement ofUnderstanding, Tolerance
and Respect in Matters Relating to Freedom of Religion or Belief,
called by the UN Secretariat in 1984 on ways to implement the 1981 UN
Declaration. In 1986, The Tandem Project organized the first NGO International
Conference on the 1981 UN Declaration.